Opinion
NN-05898-15
01-04-2016
In the Matter of Tremmel A., A child under eighteen years of age alleged to be neglected by v. Rosaelena M., Respondent.
Monroe County Law Department, by Andrew D. Kleehammer, Esq., for Petitioner Monroe County Public Defender's Office, by Adele Fine, Esq., for Respondent Kathleen L. Perrault, Esq., Attorney for the Child
Monroe County Law Department, by Andrew D. Kleehammer, Esq., for Petitioner Monroe County Public Defender's Office, by Adele Fine, Esq., for Respondent Kathleen L. Perrault, Esq., Attorney for the Child Dandrea L. Ruhlmann, J.
This is a novel case addressing whether an infant in foster care should be moved to the home of his half brother's adoptive family. By order entered June 2, 2015, Tremmel A. (dob: ?/?/2015) was removed from Respondent Rosaelena M. (Mother) and placed in the care and custody of Petitioner Monroe County Department of Human Services, Division of Social Services (DHS) in the certified foster home of Kevin and Heather H. On or about August 13, 2015 DHS informed the Court that Tremmel's placement would be changed to the S. family, the adoptive home of Tremmel's half brother Quinzel. Tremmel's Attorney filed a motion opposing any move from the H. foster home. On November 5, 2015 the Court heard testimony on Respondent Mother's default and made a finding that Mother neglected her son Tremmel (Family Court Act § 1051 [a]; Family Court Act § 1012 [f] [I] [B]). The Court proceeded to disposition and heard testimony. The Attorney for Child's motion to keep Tremmel in his current foster home placement with Kevin and Heather H. is granted.
"Placement with siblings or half siblings shall be presumptively in the child's best interests unless such placement would be contrary to the child's health, safety, or welfare" (Family Court Act § 1027-a). "[A]n assessment of the child identified for consideration for foster care placement must include whether the child will be placed with the child's siblings and half-siblings and, if not, the reasons therefor and the arrangements made for contact between the siblings and half-siblings. . ." (Social Services Law § 409-e [1] [d]).
The provisions of the Strengthening Family Act specify that when a child is removed from his home, relative notification for the purpose of finding a placement for such child must also include notifying "all parents of a sibling of the child, where such parent has legal custody of a sibling. . . " (42 USC § 671 [a] [29]). The provisions of the Strengthening Family Act also specify that the relative notice requirement must also include the adoptive parents of a child's half-sibling (see OCFS Administrative Directive, 15 OCFS-ADM-01).
Here, J. E., DHS senior case manager, admitted that Tremmel was not initially placed with the S. family, the adopted family of Quinzel (dob: ?/?/2006), one of Tremmel's half-siblings, because "it slipped through the cracks." Tremmel has seven other half siblings (Angel dob: ?/?/1998; Malik dob: ?/?/2002; Nakia dob: ?/?/2003; Jeremiah dob: ?/?/2004; twin siblings Robert and Rashawn dob: ?/?/2007; and Isabella dob: ?/?/2011).
Where minor half-siblings are placed apart. . . they must be reunited within 30 days unless DHS or a designated representative determines it is contrary to the best interests of one or more of the siblings to be placed together after a careful assessment of the following factors: 1) the age differentiation of the siblings; (2) the health and developmental differences among the siblings; (3) the emotional relationship of the siblings to each other; (4) the individual services needs; (5) the attachment of the individual siblings to separate families/locations; and (6) the continuity of environmental standards (18 NYCRR § 431.10 [b]; [c]). Any decision that half-siblings should be separated because it is contrary to the health, safety or welfare of one or more of the children should be made only after consultation with, or an evaluation by, other professional staff such as a licensed psychologist, psychiatrist or other physician, or certified social worker (18 NYCRR § 431.10 [b]).
DHS did not notify the Attorney for the Child regarding a change in placement until approximately August 13, 2015, more than double the 30-day period as mandated by the regulations. To make such a move in placement now would be detrimental to Tremmel in considering the above-referenced factors. "Although siblings should generally be kept together, the rule is not absolute and may be overcome' by a showing that the best interests of the children are served by separating them" (Matter of Joshua E.R., 123 AD3d 723, 726 [2d Dept 2014]; see Whalen v County of Fulton, 126 F3d 400 [2d Cir 1997]). Courts may order agencies not to place children in specified foster homes after a best interests hearing or as part of a permanency planning hearing (see Matter of Brandon, 50 AD3d 395 [1st Dept 2008]; Matter of Joshua Noel A., 40 AD3d 749 [2d Dept 2007]; Matter of Adrienne M., 201 AD2d 938 [4th Dept 1994]).
The Attorney for the Child's witness, Dr. Brown, testified that she has her doctorate in Nursing Practice and has been Tremmel's treatment provider at a local pediatric practice since Tremmel's birth. Tremmel was born at a small gestational weight of only four pounds but with a larger than average head circumference. He suffers from reflux irritability and is borderline on needing services to address his fine and gross motor skills. Tremmel is currently seeing a plastic surgeon who recommends helmet therapy. Tremmel had prenatal exposure to drugs and alcohol and has required early intervention for his muscle tone. Dr. Brown testified that Tremmel has bonded well with his current foster family, Kevin and Heather H. and does not believe it would be in Tremmel's best interest to disrupt such a secure attachment.
DHS senior case manager, J.E., admitted both that Tremmel has been extremely well cared for by Kevin and Heather H., and that Tremmel's biological mother prefers that Tremmel stay with Kevin and Heather H. She testified that Tremmel has bonded with the H. family.
Both Kevin and Heather H., aged 39 and 36 years old respectively, testified as to their care for Tremmel since his birth. Tremmel was born at 37 weeks, hypoglycemic and was treated for gonorrhea and withdrawal symptoms. Kevin H., a licensed massage therapist, testified that Tremmel suffers from tightened muscles but through infant massage he has been able to help release such tension. Kevin H. works for a local therapeutic massage center, serving in part, infants and children. Kevin and Heather H. testified that Tremmel was unable to suck and swallow requiring them to spend considerable time feeding him. Although Tremmel was born weighing only 5 lbs. 1 oz, his weight has improved.
Heather H. is a licensed teacher in a suburban school district. She is off during the summer and enjoys staying at home with Tremmel. The H. family has one daughter who adores Tremmel. Together the family vacations at a campground approximately 80 miles from home. Kevin and Heather H. testified that they are adoptive resources for Tremmel and that they support and would encourage sibling visitation between Tremmel, Quinzel and all the siblings.
The Court finds that Tremmel shall remain with the H. family considering his best interest and specifically his attachment with the H. family and Dr. Brown's opinion that it would be detrimental to disrupt this attachment. The Court however mandates that Tremmel be permitted visits with Quinzel (see 18 NYCRR § 431.10 [e] [authorized agencies are responsible for ensuring that diligent efforts are made to facilitate regular biweekly visitation between minor siblings or half-siblings]). Although there is a nine year age difference and no current emotional relationship between the brothers, the Court is mindful of how important their sibling relationship may be in the future. Such relationship shall be fostered and afforded to these boys (see Matter of Austin M., 37 Misc 3d 1218[A] [Fam Ct, Monroe County 2011]).
At the conclusion of a dispositional hearing after a neglect finding, the court shall enter an order of disposition, inter alia, (I) suspending judgment in accord with section one thousand fifty-three; or (ii) releasing the child to the custody of his parents or other person legally responsible; or (iii) placing the child (Family Ct Act § 1052). Tremmel shall continue to be placed with Kevin and Heather H. and DHS shall submit an appropriate dispositional plan.
Now therefore it is hereby
ORDERED that Tremmel A. shall continue to be under the care and custody of the Monroe County Department of Human Services and placed with the H. family.
Dated this 4th day of January, 2016 at Rochester, New York. ___________________________________ HON. DANDREA L. RUHLMANN FAMILY COURT JUDGE PURSUANT TO § 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN THIRTY DAYS OF THE RECEIPT OF THE ORDER BY APPELLANT IN COURT, THIRTY-FIVE DAYS FROM THE MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR THIRTY DAYS AFTER SERVICE BY A PARTY OR ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.